State v. Swearingen

2023 UT App 155
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
M ISTIE DEE S WEARINGEN ,
Appellant.
Opinion
No. 20210541-CA
Filed December 21, 2023
Seventh District Court, Castle Dale Department
The Honorable Jeremiah Humes
No. 201700094
Wendy Brown, Debra M. Nelson, and Benjamin
Miller, Attorneys for Appellant
Sean D. Reyes and Natalie M. Edmundson,
Attorneys for Appellee
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES DAVID N. M ORTENSEN and R YAN M. HARRIS
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	Mistie Dee Swearingen was charged with four counts of
distributing or arranging to distribute a controlled substance for
her involvement in three undercover drug sales. A jury convicted
her on all counts, based largely on the testimony of a confidential
informant. Swearingen appeals her convictions, asserting that the
trial court erred by excluding evidence concerning the nature of
the relationship between the confidential informant and law
enforcement. While she also raises other claims of error, we do not
address them because we conclude that the trial court erroneously
excluded evidence of bias regarding the State’s main witness and
we agree that Swearingen was prejudiced by this exclusion.

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Accordingly, we vacate Swearingen’s convictions and remand her
case for a new trial.
BACKGROUND1
¶2 	In 2018, a detective with the Emery County Sheriff’s Office
(Detective) hired an “extremely hard work[ing],” “good kid” with
a 	“little 	drug 	problem” 	to 	act 	as 	a 	confidential 	informant
(Informant) 	who 	would 	assist 	law 	enforcement 	officers 	in
conducting 	controlled 	drug 	buys. 	Detective 	often 	hired
informants to assist his law enforcement work; under the terms of
the typical arrangement, an informant would agree to help with
“controlled drug buys” and Detective would agree to “lessen the
charge of [the] specific crime that they were arrested for.” But in
2019, at the time of the controlled buys at issue in this case,
Informant was not working off any pending criminal charges, and
so Detective offered a different arrangement: he agreed to pay
Informant $100 for each drug buy he completed.
¶3 	To initiate the buys, Informant texted several individuals,
including Swearingen, offering to purchase methamphetamine or
heroin. Swearingen, a longtime acquaintance of Informant and
fellow drug user, “happened to be somebody that replied” as
willing to sell those substances. Soon after receiving his text,
Swearingen met with Informant three times to sell controlled
substances. For each controlled buy with Swearingen, Informant
wore a listening device and was in contact with police officers
before 	and 	after 	visiting 	Swearingen’s 	residence. 	Law
enforcement did not observe the actual exchange of drugs and
money between Informant and Swearingen; while Informant
wore a listening device during all the buys, the audio was
inconsistent 	and 	at 	times 	unclear. 	Detective 	thought 	he
1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v.
Gallegos, 2020 UT 19, n.1, 463 P.3d 641 (quotation simplified).

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20210541-CA 	3 	2023 UT App 155
recognized Swearingen’s voice on one of the recordings but
acknowledged that he did not hear any specific discussion about
the drug deal taking place.
¶4 	At 	trial, 	Detective 	testified 	that 	when 	he 	uses 	“a
confidential informant for drug buys, [he] want[s] to keep them
as safe . . . as [he] can.” According to Detective, the State would
not file charges against the alleged drug seller until the “particular
informant is not active anymore as far as buying drugs.” Detective
explained, “We’ll wait for a time for the heat, so to speak, to die
down with that individual, and then we’ll file charges.”
¶5 	Approximately a year after Informant’s three controlled
buys from Swearingen, the State charged Swearingen with four
counts of distributing or arranging to distribute a controlled
substance. Swearingen pleaded not guilty, and the case went to
trial.
¶6 	After a jury was empaneled, the State moved to exclude
evidence of Informant’s criminal history, specifically a drug-
related arrest that occurred in 2020, one year after he conducted
the controlled drug buys with Swearingen. The State asserted that
no charges were filed as a result of Informant’s 2020 arrest and
that the arrest was not related to Swearingen’s charges. The State
did acknowledge that Informant had “signed a contract [with
police] to work [the drug charges] . . . off” and was never charged
after 	his 	arrest. 	The 	State 	moved 	to 	exclude 	evidence 	of
Informant’s 2020 arrest as irrelevant, because it occurred after the
events of Swearingen’s case, and as inadmissible under rule 609
of the Utah Rules of Evidence, because the arrest did not result in
felony charges (or convictions) and did not involve dishonesty.
The State argued that the 2020 arrest had nothing to do with
Swearingen and so the prejudicial effect of the evidence “would
far outweigh any kind of probative value.”
¶7 	In response, trial counsel asserted that the evidence of
Informant’s 2020 arrest should be admitted. Counsel argued,

State v. Swearingen
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[Informant] was working as [an informant] before
the alleged incident involving Ms. Swearingen. And
the fact that he continued and/or continues to work
with . . . law enforcement should definitely be an
extremely relevant factor in . . . his credibility. In
other words, he may have incentive to . . . testify
against Ms. Swearingen in order to . . . support his
relationship with the law enforcement . . . . [This]
show[s] that he does have [a] motive to . . . make a
statement other than the truth today. . . . [T]his is
impeachment.
¶8 	The court ruled that it would “allow testimony with regard
to [Informant’s] relationship with law enforcement, his working
with law enforcement, [and] the conditions of that arrangement.”
Nevertheless, the court granted the State’s motion in limine, at
least in part, and excluded any evidence of the 2020 arrest,
concluding that because the 2020 arrest occurred after the 2019
controlled buys at issue in the case, the evidence was irrelevant
and therefore inadmissible.
¶9 	Ultimately, the jury convicted Swearingen as charged.
Swearingen now appeals.
ISSUE AND STANDARD OF REVIEW
¶10 	Swearingen asserts, among other things, that the trial court
erred in excluding evidence of Informant’s 2020 arrest.2 Generally,
2. As we find the exclusion-of-evidence issue to be determinative,
we decline to reach the merits of the other issues presented on
appeal. See Brady v. Park, 2019 UT 16, ¶ 7, 445 P.3d 395 (“Because
our resolution of this issue renders a consideration of the [other]
issue[s] unnecessary, we decline to address [them].”). However, it
is worth acknowledging them briefly.
(continued…)

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20210541-CA 	5 	2023 UT App 155
trial courts are afforded “a great deal of discretion in determining
whether to admit or exclude evidence.” State v. Cuttler, 2015 UT
95, ¶ 12, 367 P.3d 981 (quotation simplified). Thus, we review
evidentiary determinations for an abuse of discretion. See id.
“Legal errors, such as the application of an improper legal
standard [in assessing the admissibility of evidence], are usually
an abuse of discretion.” Northgate Village Dev., LC v. City of Orem,
2019 UT 59, ¶ 21, 450 P.3d 1117 (quotation simplified). Further, we
will not reverse an erroneous decision to exclude evidence unless
the error is harmful. See State v. Boyd, 2001 UT 30, ¶ 40, 25 P.3d 985
(“Even should we find such error [in the exclusion of evidence],
we will only reverse if . . . absent the error there is a reasonable
likelihood of an outcome more favorable to the defendant.”
(quotation simplified)).
Portions 	of 	the 	trial 	were 	held 	virtually 	over 	a
videoconference platform, and as the trial started, Swearingen
experienced technical difficulties and was unable to log into the
platform on time. As a result, she was not present for the first few
minutes 	of 	the 	proceeding, 	during 	which 	the 	court 	made
introductory 	remarks 	to 	the 	prospective 	jurors. 	Swearingen
asserts 	that 	her 	absence 	during 	this 	time 	violated 	her
constitutional right to be present at all stages of the criminal case
against her. We are unpersuaded by this argument.
Swearingen also asserts that because neither the trial court
nor trial counsel noticed her absence or attempted to cure any
negative inference among prospective jurors from that absence,
the 	trial 	court 	plainly 	erred 	and 	her 	trial 	counsel 	was
constitutionally ineffective. While we do not agree that these
errors 	reach 	the 	height 	of 	constitutional 	ineffectiveness, 	we
certainly do not condone what appears to be the deficient
performance of her counsel and others in this case. It is a low bar
for the participants in a criminal jury trial to, at the very least,
verify that a defendant is accounted for and present before
starting the proceedings.

State v. Swearingen
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ANALYSIS
I. The Trial Court Erred by Excluding Evidence of Informant’s
2020 Arrest
¶11 	Relevance 	is 	a 	“very 	low 	bar 	for 	the 	admission 	of
evidence.” See Harrison v. SPAH Family Ltd., 2020 UT 22, ¶ 71, 466
P.3d 107 (quotation simplified). And evidence that undermines
the credibility of a witness is always relevant. See, e.g., Davis v.
Alaska, 415 U.S. 308, 316 (1974) (“The partiality of a witness is
subject to exploration at trial, and is always relevant as discrediting
the witness and affecting the weight of [the witness’s] testimony.”
(quotation simplified) (emphasis added)); accord State v. Hackford,
737 P.2d 200, 203 (Utah 1987). Here, Informant had been arrested
for drug possession one year prior to Swearingen’s trial but had
not been charged with any crime following that arrest. Trial
counsel requested the opportunity to explore whether Informant
felt pressure to provide testimony favorable to the prosecution
lest he face drug-related charges himself. But trial counsel was
unable to cross-examine Informant about his 2020 arrest and bring
any potential biases about the 2020 events to light because the trial
court excluded the evidence of Informant’s arrest as irrelevant
and inadmissible.
¶12 	We agree with Swearingen that the trial court erred in
excluding evidence of Informant’s 2020 arrest. As we explain
below, the evidence is admissible under rules 401, 608(c), and 403
of the Utah Rules of Evidence. Likewise, because the evidence is
admissible for a proper non-character purpose, it is not barred by
rule 404 as a prior bad act.
A. 	The 2020 Arrest Evidence Is Admissible Under Rule 401
¶13 	“Evidence is relevant if: (a) it has any tendency to make a
fact more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the action.” Utah
R. Evid. 401.

State v. Swearingen
20210541-CA 	7 	2023 UT App 155
¶14 	As discussed above, supra ¶ 11, bias evidence is always
sufficiently relevant to clear the low bar under rule 401. Here,
Informant had an ongoing contract with law enforcement that
could have incentivized him to testify against Swearingen both to
support that relationship and avoid drug charges related to his
2020 arrest.
¶15 	Because the 2020 arrest evidence would make Informant’s
potential bias “more . . . probable than it would be without the
evidence,” and because Informant’s potential bias was a “fact . . .
of 	consequence,” 	the 	trial 	court 	erred 	by 	excluding 	cross-
examination about that arrest from Swearingen’s trial under rule
401 of the Utah Rules of Evidence.
B. 	The 2020 Arrest Evidence Is Admissible Under Rule 608(c)
¶16 	Under rule 608(c) of the Utah Rules of Evidence, “[b]ias,
prejudice or any motive to misrepresent may be shown to
impeach the witness either by examination of the witness or by
other evidence.”
¶17 	The prosecutor and trial court appear to have overlooked
this rule when considering whether to admit the evidence of
Informant’s 	2020 	arrest. 	Informant’s 	relationship 	with 	law
enforcement had been clearly established prior to his arrest in
2020, and the decision not to file charges after that arrest would
seem to qualify as evidence of “bias, prejudice or . . . motive [for
Informant] to misrepresent” at Swearingen’s trial. See State v.
Hackford, 737 P.2d 200, 203 (Utah 1987) (quotation simplified)
(concluding that rule 608(c) is the proper rule under which to
consider the propriety of cross-examination of a witness for bias,
prejudice, or a motive to misrepresent).
¶18 	Because the 2020 arrest evidence is evidence of Informant’s
potential bias, it was admissible to impeach Informant and the
trial court erred by excluding it from Swearingen’s trial under rule
608(c).

State v. Swearingen
20210541-CA 	8 	2023 UT App 155
C. 	The 2020 Arrest Evidence Is Admissible Under Rule 403
¶19 	“The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair
prejudice . . . .” Utah R. Evid. 403.
¶20 	“Evidence is only unfairly prejudicial if it creates an undue
tendency to suggest decision on an improper basis.” State v. Von
Niederhausern, 2018 UT App 149, ¶ 24, 427 P.3d 1277 (quotation
simplified). “Rule 403 provides that the court may exclude
relevant 	evidence 	if 	its 	probative 	value 	is 	substantially
outweighed by a danger of misleading the jury.” State v. Maestas,
2012 UT 46, ¶ 138, 299 P.3d 892 (quotation simplified). “The
critical question is whether [evidence] is so prejudicial that the
jury will be unable to fairly weigh the evidence.” Id. (quotation
simplified). “Moreover, the fact that evidence is prejudicial does
not, by itself, render that evidence inadmissible. Rather, if the
evidence is prejudicial but is at least equally probative, it is
properly admissible.” State v. Ramirez, 924 P.2d 366, 369–70 (Utah
Ct. App. 1996) (quotation simplified), see also State v. Beverly, 2018
UT 60, ¶ 72, 435 P.3d 160 (“Given [the evidence’s] overwhelming
probative 	value 	we 	cannot 	say 	that 	its 	probative 	value 	is
substantially 	outweighed 	by 	a 	danger 	of 	unfair 	prejudice.”
(quotation simplified)).
¶21 	Law enforcement did not observe the actual exchange of
drugs and money between Informant and Swearingen; and while
Informant wore a listening device during the buys, the audio was
inconsistent and at times unclear, making Informant’s testimony
against Swearingen the lynchpin of the State’s case. It is well
established that when a witness is “the only person who could
testify about” the conduct charged in a criminal case, their
“testimony [is] highly probative,” State v. Burke, 2011 UT App 168,
¶ 51, 256 P.3d 1102, cert. denied, 263 P.3d 390 (Utah 2011), and “the
more essential the witness is to the prosecution’s case, the more
latitude the defense should be given to explore fundamental

State v. Swearingen
20210541-CA 	9 	2023 UT App 155
elements such as motive, bias, or credibility,” State v. Orn, 482
P.3d 913, 920 (Wash. 2021) (quotation simplified). Based on this
fact, Informant’s “testimony and credibility were of the utmost
importance in the jury’s determination.” See Jaramillo v. Fisher
Controls Co., 698 P.2d 887, 896 (N.M. Ct. App. 1985).
¶22 	Thus, the rule 403 balancing test comes out in favor of
admission of Informant’s 2020 arrest because there is little chance
of unfair prejudice to the State and there is high potential
probative value to Swearingen. Thus, the trial court erred by
excluding this evidence from Swearingen’s trial under rule 403.
D. 	The Evidence of Informant’s 2020 Arrest Is Admissible for
a Proper Non-character Purpose and Thus Is Not Barred by
Rule 404 as a Prior Bad Act
¶23 	Under rule 404(b) of the Utah Rules of Evidence, evidence
of crimes, wrongs, or other bad acts is not admissible to prove that
the person acted in conformity with a bad character. However,
such evidence may be admissible for a non-character purpose
such as motive or intent. Utah R. Evid. 404(b). This evidence must
also be relevant to a non-character purpose under rule 401 and
have probative value that is not “substantially outweighed by a
danger of . . . unfair prejudice” to be admissible. Id. R. 402, 403.
¶24 	The trial court determined that Informant’s 2020 arrest was
irrelevant to his motive to testify against Swearingen because his
arrest took place one year after Swearingen was charged with her
drug crimes. However, this line of reasoning fails to take into
account the potential motivation Informant might have to testify
favorably 	for 	the 	prosecution 	because 	of 	the 	outstanding
possibility that the State might still file charges against him related
to that arrest. Trial counsel articulated this point as strong
rationale for being allowed to use the evidence of Informant’s
arrest under rule 404(b)(2) to impeach Informant’s testimony,
stating that Informant “may have incentive to . . . testify against
Ms. Swearingen in order to . . . support his relationship with the

State v. Swearingen
20210541-CA 	10 	2023 UT App 155
law enforcement” and that this 	“show[s] that he does have [a]
motive to . . . make a statement other than the truth today.”
¶25 	Informant’s motive to testify in a manner favorable to the
prosecution is relevant under rule 401. See State v. Hackford, 737
P.2d 200, 203 (Utah 1987) (“[E]vidence of bias or motive is ‘always
relevant as discrediting the witness and affecting the weight of
[the witness’] testimony.’” (quoting Davis v. Alaska, 415 U.S. 308,
316 (1974))); State v. Worthen, 2008 UT App 23, ¶ 23, 177 P.3d 664
(“The Confrontation Clause require[s] the privilege to yield to the
criminal defendant’s right to show the existence of possible bias
and prejudice . . . [thus] the partiality of a witness is subject to
exploration at trial and is always relevant as discrediting the
witness and affecting the weight of his testimony.” (quotation
simplified)), aff’d, 2009 UT 79, 222 P.3d 1144. Thus, evidence of
Informant’s 2020 arrest was relevant under rule 401.
¶26 	And, while the State may have suffered some prejudice
from the jury knowing that Informant had been arrested on drug
possession charges, the probative value of that evidence far
outweighs any prejudice. The State had not filed charges based on
Informant’s 	arrest, 	making 	evidence 	of 	that 	arrest 	highly
probative to a jury weighing Informant’s potential bias against the
validity of his proffered testimony. Informant was, after all, the
only witness to testify about the alleged controlled drug buys with
Swearingen and therefore evidence that Swearingen was the
seller of the drugs came from Informant alone.
¶27 	Thus, we are unpersuaded that evidence of Informant’s
2020 arrest was properly excluded under rule 404, as it was
admissible for a proper non-character purpose.
II. The Trial Court’s Exclusion of Evidence of Informant’s 2020
Arrest Harmed Swearingen
¶28 	Having determined that the trial court erred in excluding
evidence of Informant’s 2020 arrest, we turn to whether that error

State v. Swearingen
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warrants reversal of Swearingen’s convictions—i.e., whether the
trial court’s error harmed Swearingen. This requires a showing
that “absent the error there is a reasonable likelihood of an
outcome more favorable to the defendant.” State v. Boyd, 2001 UT
30, ¶ 40, 25 P.3d 985 (quotation simplified).
¶29 	Swearingen alleges she was harmed by the trial court’s
erroneous exclusion of the evidence of Informant’s arrest under
the Utah Rules of Evidence. Under the harmless error rule,
whether an evidentiary error is more harmful than not depends
on 	the 	“importance 	of 	[Informant’s] 	testimony 	in 	the
prosecution’s 	case” 	as 	well 	as 	the 	“absence 	of 	evidence
collaborating or contradicting the testimony of the witness on
material points.” State v. Hackford, 737 P.2d 200, 205 (Utah 1987)
(quotation simplified). The State argues that while Informant’s
testimony was a critical part of the case against Swearingen, the
jury had sufficient information about Informant’s prior drug use
and criminal record to fully appraise Informant’s biases and
motivations. See id. (holding that a defendant must be allowed to
cross-examine a witness to establish the witness’s bias). Yet
Swearingen offers a persuasive counterargument that the jury
could reasonably have considered that Informant’s prior arrest
with no accompanying charges furnished a motive for Informant
to favor the prosecution in his testimony above and beyond the
information already admitted regarding his history of drug use
and related convictions. See Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986) (holding it is constitutionally improper for a trial court
to deny a defendant the opportunity to impeach a witness for bias,
and such bias is subject to the harmless-error rule).
¶30 	While the jury was made aware of Informant’s drug use
and criminal record, which might have made him less credible,
the evidence of the timing of Informant’s arrest—as distinct from
the 	other 	evidence—uniquely 	demonstrates 	the 	ongoing
relationship between Informant and law enforcement at the time
he testified against Swearingen. Throughout the trial, the State

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denied 	the 	relevance 	of 	Informant’s 	2020 	arrest 	because 	it
occurred 	after 	the 	alleged 	drug 	buys. 	Yet 	the 	timing 	of
Informant’s arrest after the alleged drug buys and its proximity to
trial are precisely what make the evidence so probative of
Informant’s potential bias: Informant had an ongoing contract
with law enforcement to work off drug charges, no charges were
filed as a result of Informant’s 2020 arrest, and the statute of
limitations to file charges against Informant was still running at
the time of Swearingen’s trial.3
¶31 	We conclude it is likely that the jury would have been
persuaded by the excluded evidence of Informant’s prior arrest to
view Informant as less credible, and as a result there is a
reasonable likelihood that the jury would have entertained a
reasonable doubt whether Swearingen engaged in the drug buys
for which she was charged. In sum, the trial court’s improper
exclusion of evidence of Informant’s prior arrest prejudiced
Swearingen. And absent this prejudice, there was “a reasonable
likelihood of an outcome more favorable” to Swearingen. See
Boyd, 2001 UT 30, ¶ 40 (quotation simplified).
CONCLUSION
¶32 	The trial court abused its discretion when it improperly
excluded 	evidence 	of 	Informant’s 	prior 	arrest, 	prejudicing
Swearingen. We therefore reverse Swearingen’s convictions and
remand the matter for a new trial.
3. Utah law requires that the prosecution for a misdemeanor
offense be commenced within two years after the offense is
committed. See Utah Code § 76-1-302(1)(b).